United States District Court, E.D. California
FERNANDO SINGLETON MILLSAP aka FERNANDEZ SINGLETON MILLSAP aka FREDDY ELLIS, Petitioner,
PEOPLE OF THE STATE OF CALIFORNIA, Respondent.
FINDINGS AND RECOMMENDATION RECOMMENDING DENIAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
§ 2254. In the petition, Petitioner asserts a violation
of the Fourth Amendment's prohibition on unreasonable
searches. For the reasons discussed herein, the Court
recommends denial of the petition for writ of habeas corpus.
August 22, 2006, Petitioner was convicted of being a felon in
possession of a firearm. Petitioner was sentenced to an
imprisonment term of twenty-seven years to life.
1). On January 24, 2008, the California Court of Appeal,
Fifth Appellate District affirmed the judgment. People v.
Millsap, No. F051451, 2008 WL 192331 (Cal.Ct.App. Jan.
24, 2008). The California Supreme Court denied
Petitioner's petition for review on April 9, 2008. (LDs
Petitioner filed multiple post-conviction petitions, which
were all denied. (LDs 5-14). Petitioner then filed a federal
petition for writ of habeas corpus, which was denied on the
merits with prejudice. (LDs 20, 21). On August 1, 2014,
Petitioner, with the assistance of counsel, filed a petition
for recall of sentence pursuant to Proposition 36 in the Kern
County Superior Court, which denied the petition on October
28, 2014. (LDs 15, 16). On November 18, 2014, Petitioner
filed a notice of appeal in the California Court of Appeal,
Fifth Appellate District, which affirmed the denial of the
petition on September 22, 2016. (LD 17); People v.
Millsap, No. F070452, 2016 Cal.App. Unpub. LEXIS 7100
(Cal.Ct.App. Sept. 22, 2016). On October 25, 2016, Petitioner
filed a petition for review in the California Supreme Court,
which denied the petition on November 30, 2016. (LDs 18, 19).
12, 2017, Petitioner filed the instant federal petition for
writ of habeas corpus. (ECF No. 1). Respondent filed a motion
to dismiss, which was later withdrawn. (ECF Nos. 18, 22, 26).
On November 9, 2017, Respondent filed an answer to the
petition. (ECF No. 29).
STATEMENT OF FACTS
October 22, 2005, Priscilla Monroy contacted the
sheriff's department for a civil standby to keep the
peace while she retrieved her belongings from the apartment
she shared with defendant. Ms. Monroy was concerned for her
safety because defendant kept a rifle at the apartment and
had once pointed it at her. Two deputies accompanied Ms.
Monroy to defendant's apartment, where defendant sat on
the couch while Ms. Monroy collected her things. Ms. Monroy
informed the deputies that defendant, who was a convicted
felon, kept a rifle under the kitchen sink. One deputy looked
in a cabinet under the sink and retrieved an unsecured,
sawed-off .22-caliber rifle from behind a cut-out compartment
separated by a small half wall.
subsequently found defendant guilty of being a felon in
possession of a firearm and, as defendant had two prior
strikes, the trial court sentenced defendant as a
third-strike offender to a term of 27 years to life in
prison. Following the enactment of Proposition 36, defendant
filed a petition for recall of sentence. The trial court
denied the petition, finding defendant was armed with the
firearm he possessed during the commission of the commitment
2016 Cal.App. Unpub. LEXIS 7100, at *2-3. ///
STANDARD OF REVIEW
by way of a petition for writ of habeas corpus extends to a
person in custody pursuant to the judgment of a state court
if the custody is in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(c)(3); Williams v. Taylor, 529
U.S. 362, 375 (2000). The challenged action arises out of the
Kern County Superior Court, which is located within the
Eastern District of California. 28 U.S.C. § 2254(a); 28
U.S.C. § 2241(d).
April 24, 1996, Congress enacted the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”),
which applies to all petitions for writ of habeas corpus
filed after its enactment. Lindh v. Murphy, 521 U.S.
320 (1997); Jeffries v. Wood, 114 F.3d 1484, 1499
(9th Cir. 1997) (en banc). The instant petition was
filed after the enactment of AEDPA and is therefore governed
by its provisions.
AEDPA, relitigation of any claim adjudicated on the merits in
state court is barred unless a petitioner can show that the
state court's adjudication of his claim:
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts ...